Press Release

Supreme Court issues dangerous ruling: Having to treat some more equally than others could wreak havoc on government programs

OTTAWA: The Supreme Court of Canada released a unanimous decision today holding that the North Vancouver School District discriminated against an elementary school student by failing to provide him with a special education program which it had scrapped years before due to budget shortfalls.

In 1994, the cash-strapped school district defunded an expensive and highly specialized program for dyslexic children. Beginning two years later, the parents of 9-year-old Jeffrey Moore chose to pay approximately $100,000 over nine years for a private education that included the intensive program previously available in the public system. Jeffrey’s father then complained to a Human Rights tribunal that his son’s right to be free from discrimination entitles him to be reimbursed for the cost of the private school.

In 2005, the BC Human Rights tribunal awarded the Moore family reimbursement for its tuition fees plus $10,000 in damages for pain and suffering. That decision was overturned by the Supreme Court of BC in 2008. The BC Court of Appeal affirmed in 2010 that no discrimination had occurred.

Justice Rosalie Abella, writing for the full Supreme Court of Canada (SCC), reversed the BC Court of Appeal, restored the tribunal decision granting the tuition reimbursement and damages, and awarded the Moore family court costs for every level of appeal. She said that the special education program was the means by which Jeffrey could gain “meaningful access to the general education services available to all British Columbia’s students,” and that without public funding for the program, Jeffrey was incapable of achieving the same level of academic competency as other students in BC.

The Canadian Constitution Foundation intervened in the SCC hearing held on March 22, 2012, arguing that neither the North Vancouver school board nor the BC government had discriminated against Jeffrey.

CCF staff lawyer Derek From said, “Jeffrey had access to exactly the same educational services available to every other public school student in his region of BC. Unfortunately, the Supreme Court rejected the concept of equal opportunity in favour of trying to guarantee equality of outcome. But this is impossible no matter how much money is spent.”

From added: “School districts have limited taxpayer-funded resources to work with. Imposing a guarantee of equal outcome for every student would require unlimited resources. The court has set a goal that is impossible to meet and could bankrupt any government that even attempted it.”

The Canadian Constitution Foundation (“Freedom’s Defence Team”) is a registered charity, independent and non-partisan, whose mission is to defend the constitutional freedoms of Canadians through education, communication and litigation.